Minister for Immigration and Border Protection v CED16 [2020] HCA 24

HIGH COURT OF AUSTRALIA

GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

MINISTER FOR IMMIGRATION AND BORDER PROTECTION APPELLANT

AND

CED16 & ANOR RESPONDENTS

Minister for Immigration and Border Protection v CED16 [2020] HCA 24 Date of Hearing: 9 June 2020 Date of Judgment: 30 June 2020 S347/2019

ORDER

1. Appeal allowed.

2. Set aside order 2 made by the Federal Court of Australia on 25 September 2018 and order 1 made by the Federal Court of Australia on 3 April 2019. In their place, order that the appeal from the judgment of the Federal Circuit Court of Australia given on 14 February 2017 be dismissed.

3. The appellant pay the first respondent's costs of the appeal to this Court.

On appeal from the Federal Court of Australia

Representation

G T Johnson SC with B D Kaplan for the appellant (instructed by HWL Ebsworth Lawyers)

J F Gormly with D J McDonald-Norman for the first respondent (instructed by Labour Pains Legal)

Submitting appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Minister for Immigration and Border Protection v CED16

Immigration – Refugees – Application for protection visa – Immigration Assessment Authority ("Authority") – Review by Authority under Pt 7AA of Migration Act 1958 (Cth) – Where delegate of Minister for Immigration and Border Protection refused to grant first respondent protection visa – Where decision referred to Authority for review – Where Authority ordinarily obliged to consider "review material" provided by Secretary of Department of Immigration and Border Protection ("Secretary") without considering "new information" – Where review material must include material considered by Secretary to be relevant to review – Where review material included identity assessment form – Where Authority notified that s 473GB applied to identity assessment form – Where notification included certificate purporting to certify that disclosure of information or matter contained in identity assessment form contrary to public interest – Where certificate invalid – Where certificate not before delegate at time of making decision under review – Whether certificate "new information" within meaning of s 473DC(1) – Whether certificate a "document" or contained "information" – Whether Authority could be inferred to have considered that certificate may have been relevant to conduct of review.